Sunshine Committee 2016 Recommendations to Washington Legislature

The Washington State Sunshine Committee makes recommendations to the Washington Legislature to repeal or amend exemptions to disclosure under the state’s Public Records Act, Chapter 42.56 RCW. Earlier this week, the Committee released its 2016 Annual Report. The report summarizes committee discussions regarding the exemptions reviewed in 2016 and attaches five recommended amendments (at Report Exhibits A-E) to the Public Records Act and related statutes.

  • Exhibit A proposes to redefine the scope of certain public employee information exempt from disclosure. The proposal would also provide that the exemption for certain employer investigation records ends once the agency notifies the complaining employee of the investigation’s outcome. RCW 42.56.250.
  • Exhibit B would allow individuals associated with certain information in records to expressly consent to the information’s disclosure. RCW 42.56.230.
  • Exhibit C would limit an express exemption for certain proprietary data and trade secrets to only that information submitted by vendors to the Washington State Department of Social and Health Services regarding state purchased health care. RCW 42.56.270(11). 
  • Exhibit D proposes to extend the current exemption for public contracting bid proposals submitted to the state to bid proposals submitted to local agencies. Bid proposals would be exempt from disclosure until the state or local agency announces the successful bidder or rejects all proposals. Current RCW 36.26.030 would be repealed and replaced with a new provision in Chapter 42.56 RCW.
  • Exhibit E would impose procedural requirements to protect trade secret information upon both agencies and the businesses that confidentially disclose trade secret information to them. It would also subject businesses that contract with agencies to an adverse award of attorney fees if they seek to protect trade secret information and lose in court. The proposal does not provide a reciprocal attorney fee provision against those seeking the information if the business entity prevails in court. RCW 42.56.270.

Pennsylvania Supreme Court: Public School Employees Have Constitutional Right to Privacy in Their Home Addresses

A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.

A concurring opinion was critical of the Court’s application of the rules of statutory construction. The concurring opinion would hold that the matter was controlled by the constitutional right to privacy and that the RTKL had no application. In discussing United States Supreme Court authority, the concurrence stated that “it may well be true that home addresses are publicly available through easily accessible sources. . . . However, '[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’” Citing Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), and Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994).

In 1987, the Washington Legislature amended the state’s Public Records Act (PRA) to define an invasion of privacy:

A person's “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of [the PRA] dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

RCW 42.56.050. Personal residential addresses of public employees (and their dependents) are considered private and not subject to disclosure under RCW 42.56.250(3). See Public Records Act for Washington Cities, Counties, and Special Purpose Districts (MRSC, 2016), available at http://mrsc.org/Home/Publications.aspx.

Washington Court Addresses Confidentiality of Child Support Records

Kevin Anderson, a noncustodial parent, sought child support records from the Department of Social and Health Services, Division of Child Support (DCS). Dissatisfied with DCS’s response partially denying his request, he sued under the Washington Public Records Act, chapter 42.56 RCW (PRA). On November 15, 2016, a Washington Court of Appeals rejected Anderson’s claims.

Child support records may be subject to public disclosure, but foremost the records are “private and confidential.” RCW 26.23.120(1). Records may only be disclosed “under appropriate circumstances” as authorized in the statute. RCW 26.23.120(2). Here, DCS provided records and information about Anderson’s own child support case, but redacted information about the mother and child. The Court held that DCS’s disclosures to Anderson, with redactions, were appropriate. The law limiting disclosure of child support records was an “other statute” under the PRA and therefore a proper basis for the redactions. The Court also referred to the Legislature’s direction that juvenile justice records “shall be confidential and shall be released only” under specific statutory authority. See RCW 13.50.100(2).

The Court further held that emails between the DCS support enforcement officer and the prosecuting attorney’s office were protected as attorney-client communications, and were properly withheld from disclosure. The case is Anderson v. Department of Social and Health Services.

Private Account But Public Records: Public Records Located in City Council Member's Private Email Account Are Not Protected From Disclosure By the State and Federal Constitutions

By: Philip Paine and Steve DiJulio

The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.

Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.

On appeal, the Washington Court of Appeals held that the Washington State Supreme Court’s decision in Nissen v. Pierce County, 183 Wn.2d 863 (2015) controlled. Consequently, the Court of Appeals held that neither the Fourth Amendment to the United States Constitution nor Article I, Section 7 of the Washington State Constitution afforded Vermillion a constitutionally protected privacy interest in public records contained in his personal email account. Moreover, the court explained that constitutionally protected associational rights do not protect public records from disclosure. In the alternative, the court held that even if First Amendment constitutional protections could allow Vermillion to not disclose public records in his personal email account, it was not possible for the Court to determine if any emails were subject to such protections; or, even if they were public records.

The Court also clarified that no distinction exists between an elected executive official and an elected legislative official with regard to public records held in a private email account. Vermillion and the City had argued that the result should be different from Nissen because unlike an executive official (County Prosecutor in Nissen), a legislative official has no legal authority to act on behalf of the City through email or to take unilateral action on behalf of the City. However, the court dismissed this distinction, explaining that whether a record is subject to disclosure “hinges on if the record was prepared, owned, used or retained within the scope of employment, not if the record was prepared, owned, used or retained within the scope of employment by the executive branch of government.” Vermillion Opinion at 13 (internal quotations omitted).

The court remanded the case for the Superior Court to amend its order in light of the procedures set forth in Nissen. Click here to read our analysis of Nissen.

Washington Attorney General Updates Open Government Resource Manual

The Washington State Attorney General’s Office has updated its online Open Government Resource Manual, available on the Attorney General’s Open Government web page here. The 2016 edition updates the 2015 manual and includes:

  • A new table of contents
  • Information about several 2016 statutes and court decisions

The Open Government Resource Manual describes the state’s Public Records Act and Open Public Meetings Act and includes summaries of and links to relevant statutes, court decisions, formal Attorney General Opinions, Public Records Act Model Rules and other materials.

No Expectation of Privacy in Digital File Downloaded to Publically-Accessible Folder through File-Sharing Software

The California Court of Appeals has upheld a Napa County court decision finding that a child pornographer had no reasonable expectation of privacy in files that were publically-accessible, despite his having taken measures to obfuscate them.

After the trial court denied his motion to suppress evidence, defendant Richard Evensen pleaded guilty to various sex crimes. This evidence had been obtained through software tools known as "RoundUp" that targets peer-to-peer-file-sharing networks to identify Internet Protocol ("IP") addresses associated with known digital files of child pornography. RoundUp is only available to law enforcement officials. A public website identified one such IP address to be registered with Comcast, which, upon execution of a search warrant, revealed the subscriber of the IP address to be Evensen's mother. A second search warrant was then executed, leading to further inculpatory evidence. Upon Evensen's arrest, further evidence of wrongdoing was also found.

In his motion to suppress, Evensen argued that the software tools used by the police violated his Fourth Amendment rights. The trial court rejected this and the appellate court affirmed.

According to the court, while computer users "generally have an objectively reasonable expectation of privacy in the contents of their personal computers," there are certain exceptions. One such exception is in the contents of a file that has been downloaded to a publically accessible folder through file-sharing software. Although Evensen argued that he took several measures to ensure the privacy of his computer files by changing his file sharing software's default setting to prevent others from accessing his shared public folders, the court noted that these measures still left his files occasionally open to the public (depending on how often he moved his files from his "shared" folder to his "private folder"). Had his files been completely private, they would not have been identified by "RoundUp." Therefore, he had no reasonable expectation of privacy.

People v. Evensen, No. A145162 (Cal. Ct. App. Oct. 27, 2016)

Copyright (c) 2016 International Municipal Lawyers Association (IMLA) - Republished with permission

Washington Supreme Court Clarifies Statute of Limitations Under State Public Records Act, Holds Equitable Tolling Available

The Washington Supreme Court has held that a one-year statute of limitations applies when an agency responds that it does not have records responsive to a public records act request. But, the Court also acknowledged that “equitable tolling” could apply under appropriate facts. Belenski v. Jefferson County, No. 92161-0 (September 1, 2016). Belenski sued Jefferson County more than two years after the county responded that it had no records responsive to Belenski’s request for the county’s Internet access logs. An intermediate Court of Appeals dismissed Belenski’s Public Records Act (“PRA”) claim as time-barred under the state’s two-year “catch-all” statute of limitations in RCW 4.16.130; but did not decide whether the PRA’s shorter, one-year statute of limitations in RCW 42.56.550(6) would apply. On subsequent review, the Supreme Court concluded that the PRA’s one-year statute of limitations applied.

In its ruling, the Supreme Court observed that a tension had developed in the appellate divisions over the appropriate starting point for the statute of limitations when an agency’s response does not fall strictly within the two types of responses listed in RCW 42.56.550(6) (an agency’s claim of exemption or the last production of records on an installment basis). Read more here. The Court rejected a narrow reading of the statute:

The statute does not use terms like "either" or "only" to limit the triggering events, nor does it set forth a definitive list by numbering the events as (1) and (2). Instead, the statute of limitations' reference to bringing suit within one year of "the agency's claim of exemption or the last production of a record on a partial or installment basis" indicates that the legislature intended to impose a one year statute of limitations beginning on an agency's final, definitive response to a public records request. RCW 52.56.550(6). This theme of finality should apply to begin the statute of limitations for all possible responses under the PRA, not just the two expressly listed in RCW 42.56.550(6).

Belenski Opinion at 9 (emphasis added).

However, the Court remanded the case to the trial court for consideration of equitable tolling, finding that Belenski and amici had raised “legitimate concerns that allowing the statute of limitations to run based on an agency’s dishonest response could incentivize agencies to intentionally withhold information and then avoid liability due to the expiration of the statute of limitations.” Two dissenting justices would have held that Belenski’s suit was timely because the county’s alleged “false response” never triggered the statute of limitations.

Lost But Not Forgotten: Public Records Act Violation?

A prisoner at the Washington State Coyote Ridge Corrections Center requested a document that the state could not find. The prisoner sued. A Washington appellate court on August 18, 2016 ruled that the state’s Public Records Act (PRA) did not subject a government to liability for lost records - or, even impose a burden to prove when the document was lost. Jones v. Dep’t of Corr. The court recognized that the PRA does not allow an agency to destroy records subject to a pending request. But, the court acknowledged that an “agency is not required to produce a document that does not exist.” There was no evidence that the Department unlawfully destroyed the requested form. And, the court pointed to federal court rulings finding a “government agency in compliance with the freedom of information act when it performed a reasonable search despite evidence that some requested records were accidently lost.” While an unpublished opinion, the case is useful in recognizing that the PRA “is not intended to penalize inadvertent loss, a phenomenon endemic to a large organization.”

Federal Shipping Act Preemption and Standing Addressed by Washington Court of Appeals Under State's Open Public Meetings Act

Plaintiff Arthur West filed suit under Washington State’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Port of Seattle and Port of Tacoma for excluding West and the public from a series of meetings held between the two ports in 2014. In West v. Seattle Port Commission, et al., No. 73014-2-I (July 5, 2016), the Washington Court of Appeals held that West had standing to pursue his claims under the OPMA, but also held that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101-41309, preempted application of the OPMA to the ports’ meetings. The Court therefore affirmed dismissal of West’s claims.

Standing Under the OPMA
In holding that West had standing to bring suit, the Court first emphasized that the standing requirements in the OPMA are very broad, allowing “[a]ny person” to bring an enforcement action for violation of the Act. See RCW 42.30.120, .130. It also rejected application of federal standing requirements in this context, explaining that federal case law on standing does not automatically apply to Washington courts interpreting Washington law. The Court of Appeals concluded that the ports had failed to show that West lacked standing in this case.

Federal Law Conflict Preemption
West’s lawsuit was nevertheless dismissed, because the Court also held that the Federal Shipping Act preempted the OPMA on these facts. The Shipping Act allows ports to work cooperatively in furthering the Act’s purposes, including development of “competitive and efficient ocean transportation.” 46 U.S.C. § 40101. Meeting minutes are required by the Shipping Act’s implementing regulations, but are exempt from disclosure under the Freedom of Information Act. Id. § 40306; 46 C.F.R. § 535.701.

Although the Court of Appeals agreed with West that the Shipping Act did not expressly require closed meetings, the Court found that opening the meetings to the public under the OPMA would frustrate Congress’s purposes and objectives:

Allowing the public, including possible competitors, access to the Ports’ meetings on these matters would make it far more difficult for the Ports to develop competitive approaches. As the Ports argue, open meetings here would “give the Ports’ competitors access to their strategies and would place the Ports at a competitive disadvantage vis-a-vis marine terminal operators (both here and abroad) who were not subject to similar open public meetings acts.”

Requiring the Ports to open their meetings to the public would frustrate Congress’s intent to have American marine terminal operators be competitive in international maritime commerce. We hold that the Shipping Act preempts this application of the OPMA, because the OPMA would do major damage to the Shipping Act’s objectives.

The Court’s ruling that the OPMA was preempted in this case is limited to meetings held pursuant to the Federal Shipping Act. Port districts and their commissioners remain subject to the requirements of the OPMA in other contexts.

New Penalty Provisions of Washington's Open Public Meetings Act Take Effect

Washington State’s Open Public Meetings Act (OPMA) has new penalty provisions that take effect today. Previously, a person who knowingly violated the OPMA was subject to personal liability in the form of a $100 civil penalty. RCW 42.30.120. Under the legislature’s 2016 amendments, the penalty has increased to $500 for a first violation and $1000 for any subsequent violation.